The Construction of Objectivity: An international perspective on the emotive-cognitive process of judicial decision-making (JUSTEMOTIONS)

Term: September 2018 - August 2023.

Project leader: Associate Professor Stina Bergman Blix.

Project collaborators:
Senior Lecturer Moa Bladini, University of Gothenburg.
Senior Lecturer Francesco Contini, Research Institute on Judicial System of the Italian National Research Council (IRSIG-CNR).
Professor Terry Maroney, Vanderbilt Law School.
Professor Cyrus Tata, University of Strathclyde.
Professor Åsa Wettergren, University of Gothenburg.
We will employ two post-doctoral researchers and two PhD Candidates.

This project is funded by European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme. ERC Starting Grant (No 757625).

Conventionally, objectivity is seen a process of reason that can be performed without using emotions. But emotions are drivers of social action, and therefore inherent to the process of constructing objectivity. Emotions can of course obstruct reason; when a judge gets irritated by a rude defendant or barrister, her emotions come in the foreground, blocking her line of action.But emotions can also be backgrounded, like pride in procedural correctness or interest in problem-solving. These emotions can be conducive to rational action.

This is the first comprehensive empirical study of how objectivity is constructed in different legal systems. By examining how emotions operate in decision-making, it is possible to make objectivity work explicit and available for conscious reflection, gaining important knowledge of a rational process that hitherto has been understood as exclusively cognitive. Conventionally, objectivity is seen as a process of reason that can be performed without using emotions. However, emotions are drivers of social action, and therefore inherent to the process of constructing objectivity. Rational decision-making requires facilitating emotions, for instance interest in the task and motivating emotions, for instance professional pride in correct procedures and distaste for waste of time, as well as the ability to ’feel’ the consequences of alternative actions. For legal actors, this means that objective decision-making relies on emotional information and that emotional sensibility influences allocation of culpability.

Through a comparative and multi method qualitative design, including court observations, interviews, and shadowing of legal professionals, we will study the decision-making process from prosecution, lower court, to the court of appeal in four countries, Sweden, Scotland, USA and Italy, representing different legal systems (common and civil criminal law) and varying in emotional expressiveness (e.g. the Swedish subtle emotional regime versus the more expressive Italian). By contrasting decisions of three legal types (fraud, domestic abuse, and homicide) in different legal instances and in different countries, the aim is to identify and describe a more general decision-making process based on actual practice.